The obligation of a railway company to make a disclosure under risk note Z arises upon the occurrence of either of the two events (a) and (b) referred to in the proviso in the risk note, and the disclosure is confined to the period during which the consignment was within the possession or control of the Railway Administration.

Das, J.

1. This is a second appeal by the defendant and arises out of a suit for recovery of Rs. 1291/3/6 on account of non-delivery of 5 bags of betel-nuts weighing 10 maunds and 5 bags of black pepper weighing 9 maunds 37 seers 8 chataks, plus a small shortage in two bags to the extent of 1 maund 7 seers of black pepper, from a consignment which the plaintiff-respondent had booted from Howrah to Patna Ghat railway station. It is not in dispute that the consignment was booked under risk note forms A and Z. In the former risk note, it was stated that the stitches of the bags were weak and liable to driage, and the contract between the parties was expressed in the following material term:

"I, the undersigned, do hereby agree and undertake to hold the said Railway Administration.... ... .harmless and free from all responsibility for the condition in which the aforesaid goods may be delivered to the consignee at destination and for any loss arising from the same except upon proof that such loss arose from misconduct on the part of the Railway Administrations servants."

2. The relevant terms of risk note Z were:

"I, the undersigned, in consideration of such consignments being charged for at the special reduced or owners risk rates, do hereby agree and undertake to hold the said Railway Administration harmless and free from all responsibility for any lass, destruction or deterioration, of, or damage to, all or any of such consignments from any cause, whatever, except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the Railway Administration or its servants; provided that in the following cases: (a) Non-delivery of the whole of a consignment or of the whole of one or more packages forming part of the consignment packed in accordance with the instructions laid down in the Tariff or, where there are no such instructions, protected otherwise than by paper or other packing readily removable by hand and fully addressed, where such nondelivery is not due to accidents to trains or to fire;

(b) Pilferage from a package or packages forming part of a consignment properly packed as in (a) when such pilferage is pointed out to the servants of the Railway Administration on or before delivery; the Railway Administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control and, if necessary, to give evidence thereof before the consignor is called upon to prove misconduct, but, if misconduct on the part of the Railway Administration or its servants cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor."

3. The consignment in question was booked on 22-12-1945, and was duly loaded in wagon No. 12323 and sealed and riveted for Patna Ghat and despatched from Howrah on 23-12-1945. At all the intermediate stations the seals and rivets were checked and found to be intact. The wagon in question arrived at Patna City on 27-12-1945, and the watchman on duty found that the southern side of the wagon was without seal but the rivets were intact. It was then found that the consignment was 10 bags short, and there, was a small shortage in two bags as well.

4. The learned Munsif who dealt with the suit in the first instance found from the evidence produced before him that the defendant had disclosed how the consignment had been dealt with throughout the time it was in its possession till it peached Patna Ghat station. He further found that the plaintiff-respondent had given no evidence to prove misconduct or neglect on the part of the Railway Administration or its servants. The conclusion at which he arrived was thus expressed by him :

"From the facts and evidence disclosed above, it has been proved that the bags were placed in a wagon which was duly sealed and riveted and nothing more was required to ensure the safety of the consignment which was a through cons